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October 13, 2007

Suggestions for helping the Roberts Court deal with shrinkage

Time magazine has this great cover story on the Roberts Court.  The piece is entitled, "The Incredibly Shrinking Court" and here are some (of many) highlights:

As the dust rises and the opinions, concurrences and dissents pile up, the court turns its attention to ever smaller cases related to ever narrower points of law.  There is, it seems, an inverse relationship between the passions expressed in judicial writings and the import of the cases that inspire them. In the midst of these battles, no one seems to have noticed that the stakes have diminished....

The familiar hot-button controversies -- abortion, affirmative action, the death penalty, police powers and so on -- have been around so long, sifted and resifted so many times, that they now arrive at the court in highly specific cases affecting few, if any, real people. And it's not clear that Roberts wants to alter that trend.  His speeches on the judicial role suggest a man more interested in the steady retreat of the court from public policy than in a right-wing revolution.  Unless the Roberts court umpires another disputed presidential election (à la Bush v. Gore in 2000--a long shot, to say the least), the left-right division will matter mainly in the realm of theories and rhetoric, dear to the hearts of law professors and political activists but remote from day-to-day existence.  What once was salient is now mostly symbolic....

A sense of proportion is among the defining qualities of a judge.  Yet the Roberts Court so far is better known for making symbolic mountains out of real-life molehills.

Though the Time piece suggests that the new Chief is not troubled by the shrinking court, I am troubled by the Court's Constanza-like shrinkage experience.  Of particular concern to me is the Court's repeated tendency to shrink like a frightened turtle from an array of important questions ranging from procedural rights at sentencing to extreme mandatory sentences to residency restrictions.

Consider, as but one example, the meaning of the Fifth and Fourteenth Amendments' Due Process Clause at sentencing.  The Justices have not addressed this issue head-on since the mid 1980s in McMillian, and the very-dated 1949 Williams decision is still a leading precedent.  And yet, with well over a million felony sentences imposed every year, roughly 4000 "real people" are impacted by sentencing procedures every single day the nation's courts are open for business.  I sure wish the incredibly shrinking Court would come out of its shell to take a modern look at what the Due Process Clause means at sentencing.

October 13, 2007 at 06:52 PM | Permalink


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Is this lack of attention to detail, overreach for rhetorical effect, or does Time Magazine know that we don't? They write that while Furman "struck down more than 30 state laws and spared some 600 prisoners ...[, t]his year the Roberts court will hear a case asking whether death is an excessive punishment for the rapist of a child. There is only one such prisoner on death row in the U.S." Will hear? Did I miss something? When did the court grant cert in Kennedy v. Louisiana?

Posted by: Simon | Oct 15, 2007 9:57:28 AM

Simon, I think this is just a mistake by the reporter getting a bit ahead of itself. And I suppose it is accurate that it will "hear" and resolve the cert petition this Term in Kennedy.

Posted by: Doug B. | Oct 15, 2007 10:21:30 AM

This sounds to me like a really stupid article. The Court doesn't have to decide "hot button" cases in order to make law that will effect "hot button" cases. Twombly immediately comes to mind. Moreover, it is the fact that the Court is failing to grant certiorari in cases that should not go unnoticed. The circuit courts decide "hot button" issues all the time. They create God-awful messes all the time, and the Court refuses to come clean it up.

Also, does Kimbrough not count at a "hot button" case?

Posted by: Aaron | Oct 15, 2007 3:43:20 PM

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